Following today's announcement that clinical negligence contributions by NHS trusts in England are expected to rise by 80% next year, the MDU, the UK's leading medical defence organisation, said it agreed with the NHS Litigation Authority that disproportionate legal costs awarded to claimants' solicitors in Conditional Fee Agreements (CFAs) are a key reason for the increase and urged the government to take action.

In an editorial in its Journal* published this week, the MDU, which represents over half of UK doctors, questioned the fairness of CFAs, which account for around 19 per cent of UK medical cases brought against MDU members. It revealed that claimants' solicitors may demand 50 per cent higher hourly rates than defendants' solicitors and that the costs awarded in cases brought under CFAs were significantly higher. For example, in the last three years, in those litigated CFA cases where the average damages were £5,000, the average claimants' costs were more than four times higher at £22,000.

Dr Karen Roberts, MDU medico-legal adviser and Journal Medical Editor said: "Of course, claimants who have been negligently harmed by their doctor should be compensated, but a system that provides solicitors' firms with rewards which dwarf the value of a claim needs to be reformed.

"The number of clinical negligence cases the MDU sees is not increasing, but the cost of settling cases is rising by more than the rate of inflation. Legal rulings such as the recent Thompstone Judgment can make a difference, which is particularly dramatic for the NHS because it has so many high-value claims for babies who suffer neurological damage. MDU members' claims, which arise out of care delivered in the primary and independent sectors, are not affected to the same degree and members will not see a dramatic rise in their subscriptions. However, in common with the NHSLA, we see one of the key inflationary factors as the excessive legal costs awarded to claimants' solicitors. It cannot be right that legal firms should continue to receive payments out of all proportion to the amount of damages awarded, particularly when these costs are funded, ultimately by the taxpayer."

In the Journal editorial, Dr Christine Tomkins, Deputy Chief Executive of the MDU proposed a two-fold approach to addressing the issue of CFA costs. She wrote: "We propose first that the inequities introduced by very high success fees could be addressed by capping the success fees chargeable by claimants' solicitors in CFA funded negligence cases. Second, we suggest there should be a restriction on the hourly rate of claimants' solicitors so that they more closely resemble the rates charged by defendants' solicitors. We are confident that there is now a will to tackle this question…We very much welcome the news that the Master of the Rolls has appointed Lord Justice Jackson to lead a fundamental review of civil costs, commencing in January 2009. We believe that there needs to be a review of the way clinical negligence cases are funded and we look forward to contributing to the review on behalf of members."

*MDU Journal, Volume 25 Issue 1, January 2009.

The MDU

The MDU is a mutual, not for profit, organisation owned by our members who include over 50 per cent of the UK's hospital doctors and GPs. Established in 1885, we were the world's first medical defence organisation. We defend the professional reputations of our members when their clinical performance is called into question. Our benefits of membership include insurance for claims of clinical negligence and a wide range of medico-legal advisory services.

The MDU